MCR 2.502 Interpretation

MCR 2.502(A)(1) permits a trial court to notify the parties that, after ninety-one days, it intends to dismiss the case for the parties' failure to make progress. Following this ninety-one-day period, the trial court may dismiss the action with or without prejudice; however, unless explicitly stated, dismissal under this court rule is without prejudice. MCR 2.502(C) defines a party's recourse from such an order dismissing an action for lack of progress, stating, "On motion for good cause, the court may reinstate an action dismissed for lack of progress on terms the court deems just. On reinstating an action, the court shall enter orders to facilitate the prompt and just disposition of the action." Unlike MCR 2.612(C)(2), which imposes a one-year or "reasonable" time limit on motions for relief from judgment, MCR 2.502 does not prescribe a time limit for moving to reinstate an action. In practice, the plain language of MCR 2.502(C) requires that a party petitioning to reinstate an action show "good cause." The scant case law addressing reinstatement under this court rule does not formally define a test for determining when good cause to reinstate an action exists. These few cases do, however, identify factors relevant to deciding whether to reinstate an action under the circumstances of the individual cases decided. For instance, Gerbig v. White Motor Credit Corp, 165 Mich. App. 372, 375; 418 N.W.2d 468 (1987) specifically addressed the possibility that the lack of progress was attributable to an alleged stay on the case being dismissed because of a concurrently pending action. Although this Court held that the action had not been stayed, the opinion, read broadly, suggested that if dismissal for lack of progress was inappropriate for technical or procedural reasons, then that party might be entitled to have the action reinstated. In Bolster v. Monroe Co Rd Comm'rs, 192 Mich. App. 394, 399; 482 N.W.2d 184 (1991), the Court identified the delay between the order dismissing the case and the motion to reinstate it as a relevant consideration. Bolster implicitly recognized that parties unable to demonstrate that they made progress after dismissal will be unlikely to make progress if a case is reinstated, making reinstatement futile. Accordingly, a party's conduct after the case is dismissed without prejudice under the Court rule, especially evidence of diligence in filing the motion to reinstate, is relevant to the decision to reinstate the action. There are a number of cases that discuss reinstatement under older court rules. These former court rules, such as GCR 1963, 501.3, were not identical to MCR 2.502. However, they are persuasive in the absence of other case law explicitly identifying appropriate factors a trial court must consider when exercising its discretion to grant or deny a motion for reinstatement under MCR 2.502.